Immigration matters: Be aware of new student visa policy

Opponents of President Donald Trump's immigration policies held a march and demonstration in Washington that included a protest in front of the Trump International Hotel, not far from the White House. (June 1)
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Mabuhay and hafa adai. Each year, thousands of foreign nationals enter the United States with various types of visas. The visa classification an individual utilizes determines what the individual is legally authorized to do during his or her stay, and the length of that authorized stay.

To legally deviate from the original intent and time period, the individual must adjust his or her status, apply for another visa classification, or extend his or her visa. Otherwise, an individual jeopardizes his or her legal status and becomes what is generally referred to as “out-of-status.”

A foreign national becomes out-of-status because he or she remained in the United States beyond the period of authorized stay or undertook an act that violated the terms of his or her visa. An out-of-status foreign national is an individual who once was legal, but begins to have an unlawful presence in the United States. The period of unlawful presence will determine if and how long the individual may be precluded from entering the United States in the future.

F,M, and J student visas

On May 10, 2018, the U.S. Citizenship and Immigration Services, or USCIS, issued a policy memorandum that will change how unlawful presence will be calculated for individuals utilizing the F, M and J visas. It also sets forth harsher punishments for those found to be unlawfully present under those visas.

The F and M visas are what are popularly known as student visas. And F-1 visa is a non-immigrant visa that allows foreign nationals to attend, as a full-time student, an accredited college, university, seminary, conservatory, high school or other academic institution, or language training program. An F-1 visa beneficiary must be enrolled in a program or course of study that culminates in a degree, diploma or certificate. An M-1 visa is a non-immigrant visa that allows foreigners to attend a vocational or technical school.

A J-1 visa is a non-immigrant visa that allows research scholars, professors and exchange visitors in certain programs or training in the United States.

The F, M and J visas have generally been used by foreign nationals to participate in various educational programs and training in the United States. One way an individual violates the terms of his or her student visa is by no longer being enrolled as a full-time student.

New policy effective Aug. 9

In the policy outlined in 2009, which remains in effect until the effective date of Aug. 9, 2018 for policy memorandum, an F or J visa holder, who was admitted on a duration of status begins to accrue unlawful presence on the day after USCIS formally “found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed, … whichever comes first.”

Additionally, an F, J or M visa holder admitted until a specific date accrues unlawful presence “on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day an immigration judge ordered the applicant excluded, deported, or removed.”

'Unlawful presence' to be calculated differently

Under the new policy memorandum, an F, J or M visa holder begins to accrue unlawful presence during the following instances: the day after he or she no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity; the day after completing the course of study or program; the day after the Form I-94 expires; or the day after an immigration judge orders the alien excluded, deported or removed.

Consequently, under the new policy, an F, J or M visa holder who violates the parameters of their visa will likely begin to accrue unlawful presence at an earlier date than the present policy. An individual who possesses this type of visa should be familiar with the new policy and ensure he or she will comply with the parameters of his or her respective visa.

This reflects the present administration’s strict enforcement of immigration rules and regulations. For a greater understanding of the new policy, a consultation with an experienced immigration attorney is recommended.

Catherine Bejerana Camacho is a Filipino-American attorney raised on Guam and licensed to practice in Guam and California. She specializes in employment and family-based immigration law, corporate law and family law.